Das „Geburtshaus Hitlers“ in Braunau am Inn eine unendliche Geschichte?: Eine kritische Analyse der Legalenteignung auf Grund von Symbolik

The house where Hitler was born in the town of Braunau am Inn in Upper Austria has been the subject of heated debate in Austria and beyond for some time now. This article sheds light on the issue from the perspective of Austrian constitutional law. On 13 January 2017 the Austrian parliament provided the basis for the expropriation by law, a decision which was upheld by the Austrian Constitutional Court (VfGH) on 30 July 2017 in judgement G 53/2017. In doing so the house was not only a political issue but also became the focus of debates on constitutional law. This article holds that the most problematic legal issue is the definition of public interest in the object, which is more troublesome to establish than it might appear at first sight. The problem is that concrete public interest in the house actually focuses less on the object itself than on public perception of the object. This is important for reversing the negative symbolism and for preventing Hitler’s birthplace from being a place of pilgrimage, both of which are in the public interest. Only when public interest is concretised in this way can the difficulties with the proportionality analysis of the legal expropriation be addressed adequately. Besides analysing this issue, the article aims to highlight the uniqueness of expropriation based on symbolism and the difficulties relating thereto. The article does not stop after recapitulating and evaluating the legal issues concerning Hitler’s birthplace. The purpose of the expropriation, which is hard to achieve, forces us to think about the future use of the house. The purpose – according to the expropriation law – is the “permanent prevention of the cultivation, promotion or dissemination of Nazi ideology or an affirmative commemoration to Nazism” in relation to the house where Adolf Hitler was born. First, the obligation of restitution could become a curse when the purpose of expropriation fails to be achieved. Second, achieving this purpose is anything but easy. Hence, the greatest task is yet to come: the sovereignty of interpretation about the house must be regained in order to prevent misuse and allow for critical reflection.